Brexit High Court challenge: Osborne Clarke reports on the advocacy and atmosphere in court during this famous hearing

Written on 20 Oct 2016

Day one

It is Thursday 13 October 2016 and I have the chance to get a live glimpse of what will likely be one of the most important constitutional cases of our times: the High Court hearing of The Queen on the application of Miller and others v Secretary Of State For Exiting The European Union. Or as it is commonly known, the Brexit High Court Challenge!

I make my way through the doors of the Royal Courts of Justice, and through a crowd of press and EU supporters, who are waving EU flags and umbrellas, for the 9:30 a.m. start.

The excitement is palpable. The main courtroom is packed, but helpfully the court has set up two video-link court rooms, which are also packed with a diverse crowd: the suited and booted lawyers, the man in the street nodding energetically throughout the claimants’ submissions, the enthusiastic students likely taking notes for their EU papers, and the others…

The case kicks off

Before a panel of three of the most senior judges sitting in the High Court – the Lord Chief Justice, Lord Thomas of Cwmgiedd, the Master of the Rolls, Sir Terence Etherton, and Lord Justice Sales –– the lead claimant’s main counsel, Lord Pannick QC, kicks off the hearing with what promises to be a masterclass in advocacy. It doesn’t disappoint!

The tone, tempo and clarity of the submissions are, of course, superb. I don’t think it’s an exaggeration to say that the audience is holding its breath. But much like an Olympic diver with all eyes on him, Lord Pannick QC owns the stage and, with perfect composure and steely voice, ‘jumps in’.

The lead claimant’s submissions

The theme of the lead claimant’s case is that the government does not have legal authority to use royal prerogative powers to trigger Article 50 without parliamentary approval.

Lord Pannick QC covers five topics in his opening argument:

1. Article 50;
2. The EU Referendum Act 2015, on which he says the defendant places much reliance;
3. The European Communities Act 1972;
4. The legal limits of the use of prerogative powers; and
5. The lead claimant’s answer to the points the government (the defendant) made in its skeleton argument.

Some of the key submissions made today, the opening day of the case, include the following:

  • the government cannot use prerogative power to take away rights conferred on citizens by Parliament through the European Communities Act 1972;
  • the EU Referendum Act 2015 says nothing on the consequences that should follow the referendum;
  • even if the 2015 Act “justifies” the government triggering Article 50, that Act does not give it “legal power” to do so;
  • there is nothing in the 2015 Act saying that the prerogative powers can be extended. Parliament is sovereign and rights conferred by it cannot be taken away by the Executive; the 2015 Act doesn’t come close to changing this constitutional position; 
  • if the government starts a process by giving notification which will remove rights, it doesn’t matter that Parliament might put these rights back – what matters is that the rights were removed in the first place;
  • moreover, it is as a matter of fact impossible for Parliament to give back some of the rights the UK government is taking away by triggering Article 50, such as EU citizenship rights or voting in European elections, because Parliament simply does not have the power to do so; and
  • the “Great Repeal Bill” is also briefly mentioned: in the lead claimant’s submission, this doesn’t change the fact that treaty obligations still cease to apply from the moment Article 50 is triggered – so it is again a question of stripping citizens of their statutory rights.

A couple of my favourite quotes

“The notification is pulling the trigger and once pulled the bullet hits the target.” This is Lord Pannick’s metaphor for the submission that EU treaties cease to apply once the Article 50 notification is served and this will lead inevitably to consequences in domestic law.

“Should we stay or should we go?”. Instead of the usual choice of words, “remain”/”leave”, used throughout the referendum to describe the two camps, Lord Pannick QC is inadvertently (?) channeling what The Clash has been asking us all along – to make the point that this is precisely not what the case is about. The claimants’ case is not that Parliament should re-consider whether the UK should leave the EU at all, but simply that Parliament needs to give its approval before notification is given.

With at least 11 barristers in the hearing room, and a number of them waiting to take centre stage on both sides, more fabulous advocacy lies ahead… The case continues.

Day two

Day one of the Brexit High Court Challenge caused a stir in the press, with the story being picked up with great gusto by broadsheet newspapers, legal blogs and international publications.

Following the drama of that first day, it is now the afternoon of Monday 17 October 2016 and I am back in court. By this point, the EU flag bearers lining the steps of the Royal Courts of Justice have disappeared and with them, the press interviewing the enthusiasts.

Inside the court, a crowd smaller than the one on Thursday, but still very keen, is growing impatient. As we approach the end of the midday break, people are pushing to make sure they get a place in the main courtroom. One person in the queue is telling everyone off, reminding us that we should really be queuing in the “British way”. Perhaps just a passing comment, but with an ironic echo, given that we are about to listen to the second half of the second day of the Brexit High Court Challenge…

The Crown’s case

Earlier in the day, Attorney General Jeremy Wright QC had opened the Crown’s case with the assertion that the claimants have the wider aim of trying to invalidate the referendum result. He went on to set out the government’s case, namely, that the decision to trigger Article 50 and to notify that decision are acts in the making and unmaking of treaties and so are well-established uses of the royal prerogative. There is nothing express in legislation to indicate that Parliament has intended to circumscribe such powers. This, he says, makes the triggering of Article 50 by the Executive wholly within the expectation of Parliament.

This legal battle doesn’t quite fit the David v Goliath mould: top silks with years of experience are instructed on both sides. Yet, because the defendant is the Crown and its legal team is led by the Attorney General himself, no one is underestimating the magnitude of this legal battle. Its implications? Far reverberating into the future for all of us, lawyers and laymen alike. We all have a vested interest in this case, whether by choice or implication, and the Crown’s team is about to speak again in court.

The shield, not the sword

It is quite a different skill to master the shield, rather than the sword, in a battle. But Mr James Eadie QC, also representing the Crown, assumes his role with great determination, pausing for questions from the judges but persevering methodically with his submissions.

Building on the arguments laid out by the Attorney General, Mr Eadie QC makes the point that the British constitutional landscape is very flexible and that Parliament itself has left powers to withdraw from international treaties in the hands of the Crown. Such powers can be exercised through the royal prerogative, even if that affects the rights gained by British citizens through EU membership.

The dance has yet to begin

Moreover, the triggering of Article 50 would not of itself change any common law or statutory right enjoyed by citizens, but rather, Mr Eadie QC submits, “Any such changes are a matter for future negotiations, Parliamentary scrutiny, and implementation by legislation”. Or more vividly put, “Article 50 is the formal invitation to begin the dance but the dance has to happen” – a quote that skilfully summarises the government’s position.

One exchange between the Lord Chief Justice and Mr Eadie QC in relation to rights and obligations under domestic and EU law makes the audience perk up its ears even more:

Mr Eadie QC: I am just on immigration at the moment.
The Lord Chief Justice: No, you stay there.
Mr Eadie QC: If I say the wrong thing on immigration I will be hanged by the Home Office.
The Lord Chief Justice: We would not want that fate to befall you, Mr Eadie.
”(extracted from the uncorrected transcript of day 2 of the hearing)

I am so transfixed by the ‘story’ that I forget for a split second that this powerful address cladded with metaphors is delivered in court, and I reach instinctively for the bag of crisps I’d picked up at lunch. I stop myself short because my legal career and being in contempt of court don’t sit very well together. But my reaction is telling: this is the second day of legal advocacy at its finest, where one is completely gripped by the legal arguments. One final day of submissions awaits before we can return to less extraordinary matters.

Day three

Today, Tuesday 18 October 2016, is the third and final day of the Brexit High Court Challenge, and the defendant and claimants each have one final opportunity to make their case. At the heart of their final submissions are the rights conferred on British citizens by EU legislation. This three day crash-course in constitutional law delivered by some of the finest legal minds in the country is about to reach its conclusion.

For the Crown

Mr Jason Coppel QC, a third QC representing the Crown, argues that UK citizens have very few rights as EU citizens that stem from the European Communities Act 1972. Furthermore, he asserts, none of these rights will be directly affected by triggering Article 50, because these rights may be preserved after withdrawal if Parliament chooses to do so.

The claimants respond

The claimants then have the opportunity to make their reply submissions in response to the Crown’s case. It is the lead claimant’s case that at least some of the rights conferred by EU membership will be “inevitably destroyed”. Some of these rights, such as the right to vote in European elections, clearly cannot be returned, whatever Parliament may wish. Other rights, such as rights of free movement, could potentially be returned, but depend on third parties, as the UK’s new relationship with the EU will depend on the outcome of negotiations between both sides. “By the time Parliament comes to look at the matter, post notification, the die is cast, that is the point.”, Lord Pannick submits.

The limitations on the prerogative

Lord Pannick restates the limitations of the Crown to remove constitutional and statutory rights, and restates the argument that Parliamentary approval is required to alter the law, confer rights upon individuals and deprive individuals of rights which are enjoyed under domestic law.

Counsel refers to the Bill of Rights 1689, the Case of Proclamations1610 and the very principle of parliamentary sovereignty to make the point that the breadth of the royal prerogative in relation to treaties cannot be expressed without recognising its inherent limitations. The Executive has been given broad prerogative power in relation to treaties precisely because what it does on the international sphere cannot either create rights or remove rights already recognised in domestic law. As Lord Pannick puts it, “the two parts of the equation are closely linked. They are the mirror image of each other.”

With each side making their final submissions, the case now rests in the hands of the judges, who say they will be taking time to consider the submissions, but will give their judgment “as quickly as possible”.

The whirlwind ends

It has been a whirlwind feat of impressive advocacy, mind-bending constitutional law arguments and memorable quotes. It will certainly be remembered in legal history as a one-of-a-kind moment, one of those “where were you when…?” moments that shape a generation. I am proud to say that I was THERE, in the High Court, in the very courtroom where the Brexit High Court Challenge took place.

Whichever way the decision goes, it is likely that an appeal will go to the Supreme Court to be heard by the UK’s most senior judges, with the objective of clarifying the position before the date the Prime Minister has promised to trigger Article 50, in the first quarter of 2017. So for now, back to our day-to day concerns… Until next time.